California's Supreme Court heard arguments on Tuesday in a closely watched case over whether a state law that allows illegal immigrants to pay cheaper, in-state tuition violates federal immigration law, and several of the justices appeared in their questions to be leaning toward upholding the state statute.

The case is at the center of a national debate over whether undocumented students who attend high school in the United States should be permitted to pay in-state tuition at public colleges. Nine states have similar laws, and the outcome of the California case could help sway opinion about whether those statutes will remain legally viable.

Critics of the laws argue that they illegally discriminate against U.S. citizens who must pay out-of-state tuition because they live in another state.

The critics cite a federal immigration statute that precludes undocumented students from receiving a postsecondary-education benefit, based on their residence in a state, if U.S. citizens are denied the same benefit. A California appeals court agreed in 2008, ruling that the state benefit violated federal law.

But during arguments before the state Supreme Court on Tuesday, several justices appeared inclined to reverse that decision and uphold the in-state tuition law.

The California law, enacted in 2001, promises in-state tuition to any student—including an undocumented immigrant—who graduates from a California high school they have attended for at least three years.

Opponents of the law argue that the high-school-attendance requirement amounts to a proxy for whether an undocumented student lives in California.

Providing a benefit to an undocumented student based on such a residency test violates the federal law, they argued.

Lawyers for University of California, who argued in defense of the law, say that the high-school-attendance requirement is not a proxy residency test because undocumented immigrants are not the only ones who can qualify.

For example, an Illinois student who attends boarding school in California could qualify, as could someone living in New York who returned to California after attending high school there decades ago. Justice Carol A. Corrigan seemed to agree with the university's lawyers.

She noted evidence that 70 percent of University of California students who pay in-state tuition under the provision are, in fact, legal residents of another state.

The numbers would seem to indicate that the law does not discriminate against legal residents, she said.

Ms. Corrigan asked a lawyer arguing against the law, Kris W. Kobach, if he believed California would need to allow all U.S. citizens to pay in-state tuition in order to meet the federal test.

When he answered yes, she was incredulous.

"All?

Every single one?" she said.

Such a move would cost the state's universities tens of millions of dollars in tuition revenue, because out-of-state students now pay a considerably higher rate.

At the University of California at Berkeley, for example, out-of-state students pay $35,340, while in-state students pay $12,462.

Another justice, Kathryn Mickle Werdegar, appeared to reject the argument that the California law should be preempted by the federal law, which is known as Section 1623.

Given that out-of-state students who meet the California law's requirements can also receive the benefit, Justice Werdegar said, "there is no violation of Section 1623, because it is not based on residency."

The court's decision is expected within the next several months. The in-state tuition benefit is rarely used in some states, but thousands of students receive the benefit each year in California.

The state is home to about 40 percent of the 65,000 undocumented students who graduate from American high schools each year, according to estimates from the Pew Hispanic Center. ​

Just over a month ago, ProPublica broke the story that Pennsylvania’s Office of Homeland Security contracted with the Institute of Terrorism Research and Response (ITRR), a private Israeli-based company, to assess terrorist threats impacting law enforcement priorities in Pennsylvania.

For almost a year, ITTR provided bi-weekly intelligence briefings to Pennsylvania Homeland Security which focused in equal part on “jihadist” communications and trainings throughout the world, and also social justice organizing and protests across the country.

Pennsylvania Homeland Security, in turn, distributed this information to 800 federal, local and state law enforcement agencies, along with “relevant stakeholders” like local businesses.

Information provided included the political views and movement building strategies of hundreds of law-abiding groups and individuals.

While ITTR frequently acknowledges that the groups whose first amendment actions it has so closely monitored have no history of violence or illegality, over and over they warn law enforcement of the risk of violence and property destruction that accompanies protest.

Bulletin No. 6, for example, provides the details of an anti-war protest at Lockheed Martin.

“TAM-C analysis have found no indication that this protest will be disorderly” ITRR reports, but “Lockheed Martin is an [sic] key commercial-resource … The possibility exists that the high-profile nature of the target will attract radical protestors from the ranks of local Communist and/or Anarchist movements.”

Similarly, a Lancaster protest against the desecration of Native American Graves appears to be a “peaceful protest designed to conform to legal norms” but, “ITRR analysts note the small, but present, risk that the above-mentioned issue may be taken up by more radical elements, potentially including anarchists or lone-wolf Native American rights supporters.”

If there is one central theme to be taken from the bulletins, it is this: dangerous anarchists are everywhere, and even the most peaceful protest may turn violent. ITTR provides not just dates and times, but “strategic analysis.”

For example, the November 20, 2009 Bulletin includes a lengthy and detailed account entitled “the Return of Campus Activism.”

Students everywhere are organizing against increases in tuition, we are told.

Protests like one at UC Davis, which included placards stating “Education only for the rich” are not “spontaneous,” but rather are “part of an international Anarchist movement that has been coordinated through Internet postings.”

If “student are coordinating their activities” ITTR ominously concludes, “it behooves law enforcement personnel from both the campus environment and civil authorities … to start working on their coordinated responses.”

Another exceptionally creepy bulletin includes a segment entitled “West Chester Activists Hope to ‘Build Momentum’” recounting an anti-war activist group’s attempts to mobilize people to attend anti-war demonstrations in DC.

ITRR recounts “thus far, the group has: lectured to college students, taken part in a protest organized by the West Chester University branch of Students for a Democratic Society in opposition to the troop surge in Afghanistan … and some members have helped put out a radical newsletter.”

Much of ITRR’s information clearly comes from organizations’ own websites and press materials, but the bulletins are laced with more sinister references to “intercepted internal communications.”

And not just groups are named, there are some references to individuals too, including an inexplicably detailed bio and discussion of the political views of the newly hired Executive Director of Rainforest Action Network.

The Bulletins are so outrageous as to be almost comical, but the upshot is not funny.

This is not an isolated incident. While ITRR claims to have no other governmental contracts, it seems clear that they generally perform just this type of surveillance and monitoring of protest groups for corporations who fear the impact of speech and organizing on their bottom lines.

This explains the constant rants regarding the potential dangerousness of animal rights and environmental activists: when successful, such groups force corporations to internalize the harm they cause to the environment and to the communities who stand in their way.

And yes, this contract may end shortly, but what has happened to the hundreds of bulletins already distributed to law enforcement across the country?

There is a direct negative effect of consistently teaching law enforcement that protestors pose national security risks has real effects on policing and on enforcement respect for lawful protest.

Since 9-11 we have seen increased hurdles to dissent in the US.

Every protest now not only brings out local cops but also is a potential terrorist event monitored by Joint Terrorism Task Force personnel.

These folks do not have any real terrorists to monitor so they are going after First Amendment protected activities of freedom to assemble and freedom of speech.

For an example, we need look no further than the Office of the Inspector General report released last month, detailing what happens when an FBI agent has a slow day.

It is titled A Review of the FBI’s Investigations of Certain Domestic Advocacy Groups, Office of the Inspector General, Sept. 2010. Available online at

Apparently the FBI has so little work to do they occasionally tell new agents something like “you might as well go watch the crowd at a protest, and hey, while you are there, be sure to photograph any folks who look Middle-Eastern.”

It is also noteworthy that this report only discusses FBI surveillance which people outside the FBI have documented.

Reflect as well, on the recent series of FBI raids and grand jury subpoenas issued to over a dozen anti-war and anti-imperialism activists.

Going to Palestine or Colombia for a solidarity trip and protesting at the RNC?

Well, our country has FBI agents and Joint Terrorism Task Force people to investigate you.

Our advice to you: take a look at the bulletins for yourself.

If you or your group is named, make a stink about it.

Find out if your local law enforcement offices have received the information, and demand they destroy it.

And remember, at least you’re in good company.

Bill Quigley and Rachel Meeropol are attorneys working with the Center for Constitutional Rights. You can reach Bill at quigley77@gmail.com

Immigrants and their supporters are participating in marches all over the country to protest proposed national legislation and to seek justice for immigrants. The materials available here provide important information about the rights and risks involved for anyone who is planning to participate in the ongoing marches.

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